CASES OF VOTES COUNTED AND VOTES REFUSED TO BE COUNTED.

xxxix

of the two Houses, to counting the vote of Indiana, on the ground that it was not a State in the Union at the time the electors were chosen. Her vote, however, was counted, Representatives for that State having already been admitted to seats in the Upper House.

At Monroe's second election, in 1821, objection was made, in like manner, to counting the votes of the State of Missouri, and, for the same reason, her votes were finally ordered to be counted in the alternative, as thus 231 votes for President Monroe, if the votes of Missouri are counted, and 228, if the votes of Missouri are not counted, Mr. Monroe in either case having a majority. Non constat, that had her vote promised to affect the result, it would not have been rejected. In the famous debate which took place on that occasion, "Mr. Clay said the Constitution required of the two Houses to assemble and perform the highest duty that could devolve on a public body-to ascertain who had been elected by the people to administer their national concerns. In a case of votes coming forward which could not be counted, the Constitution was silent; but, fortunately, the end in that case carried with it the means. The two Houses were called on to enumerate the votes for President and Vice-President. Of course they were called on to decide what are votes. It being obvious that a difficulty would arise in the joint meeting, concerning the votes of Missouri, some gentlemen thinking they ought to be counted, and others dissenting from that opinion, the committee thought it best to prevent all difficulty by waiving the question in the manner proposed, knowing that it could not affect the result of the election. As to the condition of Missouri, he himself thought her a State, with a perfect moral right to be admitted into the Union, but kept out for the want of a ceremonious act which was deemed by others necessary to entitle her to admission. Though, in his opinion, a State in fact, yet not being so in form, her votes could not be counted according to form. He was aware that the question of her admission might come up and be decided in this very shape; for if Congress allowed her to vote for President and Vice-President, and counted her votes, it would be a full admission of the State into the Union; but the committee thought, as there were other and more usual modes of admitting the State into the Union, it was better not to bring up the question in the discharge of this solemn and indispensable duty, but to allow that ceremony to proceed, if possible, without difficulty or embarrassment."

At the election of Van Buren, in 1837, a like objection was made to receiving the electoral vote of Michigan. It also was finally counted, like that of Missouri, in the alternative, as it could have no practical effect upon the result.

At the election of Buchanan, in 1857, the vote of Wisconsin was objected to because, in consequence of a violent snow-storm, the election had been held the day after that prescribed by law. Her vote, however, was declared by the Vice-President as it was reported to him by the letters, in obedience to the specific instruction of the two Houses, and without any pretension himself to pass upon the validity or invalidity of the electoral certificates. The two Houses in this case separated without formulating their decision as to the validity of such election.

At the beginning of the second session of the 38th Congress, and immediately prior to the second election of President Lincoln, in 1865, a joint resolution was passed, declaring that the inhabitants of the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas, and Tennessee, had rebelled against the Government of the United States; had continued in a state of armed rebellion for more than three years, and were in a state of armed rebellion in November, 1864; and provided that these States should not be allowed representation in the electoral college for choice of President and VicePresident of the United States for the term of office commencing on the 4th of March, 1865, and that no electoral votes from either of those States should be received or counted.

In the debate to which this joint resolution gave rise, the power of the two Houses to exclude the electoral vote of the State, upon sufficient cause shown, was not questioned, the only doubt raised upon the subject being whether the House alone had the power to exclude the vote of a State.

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CASES OF VOTES COUNTED AND VOTES REFUSED TO BE COUNTED.

This joint resolution received the formal approval of President Lincoln, communicated in the following message to Congress, on the 10th day of February, 1865, only three days before the election:

"TO THE HONORABLE SENATE AND HOUSE OF REPRESENTATIVES:

"The joint resolution entitled 'Joint resolution declaring certain States not entitled to representation in the electoral college' has been signed by the Executive, in deference to the view of Congress implied in its passage and presentation to him.

"In his own view, however, the two Houses of Congress, convened under the 12th article of the Constitution, have complete power to exclude from counting all electoral votes deemed by them to be illegal; and it is not competent for the Executive to defeat or obstruct that power by a veto, as would be the case if his action were at all essential in the matter. He disclaims all right of the Executive to interfere, in any way, in the matter of canvassing or counting the electoral votes; and he also disclaims that by signing said resolution he has expressed any opinion on the recitals of the preamble, or any judgment of his own upon the subject of the resolution. "ABRAHAM LINCOLN.

"EXECUTIVE MANSION, February 8, 1865."

This is the first instance, it deserves to be remarked, in which the doctrine that the two Houses of Congress, "convened under the 12th article of the Constitution," "have complete power to exclude from counting all electoral votes deemed by them to be illegal," received the full sanction of a law, by the concurring approval of both Houses of Congress and the Executive. It is impossible that the traditional interpretation of the 12th article of the Constitution should receive more authoritative confirmation.

At the first election of General Grant, in 1869, the votes of the electors of Louisiana were objected to on the ground that no valid election had been held there; her vote, however, was counted.

The electors from Georgia were objected to on four distinct grounds: first, because the electors were not chosen on the day required by law, nor any excuse given for the neglect; second, because at the date of the election the State of Georgia had not been admitted to representation as a State in Congress since the rebellion; third, because she had not complied with the reconstruction act; fourth, because "the election was not a free, just, equal, and fair election, but that the people were deprived of their just right therein by force and fraud." Her vote was counted in the alternative.

At the second election of General Grant, in 1873, three votes cast in Georgia for Horace Greeley were objected to, because Mr. Greeley was dead at the time such votes were cast. The two Houses not agreeing about the validity of these votes, they were not counted. It was also objected to all the electors from the State of Georgia, that the certificate did not show that the electors voted by ballot. The certificate of the elector Spellman, from the State of Mississippi, was objected to, because it was not authenticated by the signature of the Governor. This objection was overruled by the joint vote of the two Houses. It was objected to the electors from Texas that they had no certificate authenticated by the Executive, and that four electors, less than half a majority, had presumed to fill the places of the four absentees who were elected. This objection also was overruled by the two Houses. The electors from Arkansas were objected to: first, because the official returns showed that the electors claiming to represent the State had not been chosen; and, second, because the returns were not certified under the great seal of the State according to law. The two Houses not concurring in the validity of these certificates, the vote of Arkansas was not counted.

Here we have the electoral votes of twenty-one States, to which objections have been raised at different times by the two Houses in joint session. In four of these cases the objections were overruled; in three the votes were counted in the alternative; in thirteen the votes were excluded; and in one, that of Wisconsin, the objections were not passed upon. On the other hand, there is no instance of an objection being raised as to the validity of any electoral vote by the President of the Senate, nor of his expressing an official opinion as to the force or propriety of any objection raised in either House of Congress.

SUMMARY,

First. The exclusive jurisdiction of the two Houses to count the electoral votes by their own servants and under such instruction as they may deem proper to give on occasions arising during the counting, or by previous concurrent orders, or by standing joint rules, or by the formal enactments of law, has been asserted from the beginning of the Government; that exclusive jurisdiction has been exercised at every presidential election from 1793, when a regular procedure was first established, until and including the last count of electoral votes in 1873. It was exercised by concurrent orders of the two Houses from 1793 to 1865, and by a standing joint rule in 1865, 1869, and 1873. Every counting at these twenty-one successive presidential elections has been conducted under and governed by the regulations thus imposed. Those regulations have prescribed every step in the procedure; have defined and regulated the powers of every person who has participated in any ministerial service in the transaction. They have controlled every act of the President of the Senate in respect to the counting, except the single act of opening the packages of the electoral votes transmitted to him by the colleges, which is a special duty imposed on him by the Constitution.

During all this long period, the exclusive jurisdiction of the two Houses, exercised upon numerous successive occasions has never, in a single instance, been the subject of denial, dispute, or question.

Second. The President of the Senate, although he has regularly, in person or by some substitute appointed by the Senate, performed the constitutional duty of opening the electoral votes, has never, on any occasion or in any single instance, attempted to go a step beyond that narrow and limited function. In no instance has he ever attempted to determine what votes he should open, but has opened all, and submitted them to the action of the two Houses, unless required to omit particular votes by the concurrent orders of the two Houses, or by enactments, in the form of laws, in which the two Houses had concurred. Where duplicate or triplicate returns have been received (when returns from two sets of persons claiming to be electors), he has invariably opened and submitted all of them. As a mere temporary custodian, in the absence of the rightful owner, he has never assumed to withhold anything, or delay anything. He has obeyed the orders of the two Houses as to every act which he has done during the counting, and as to the announcement of the footing of the tellers, when they had enumerated the votes. He has performed such duties as have been imposed upon him by the concurrent orders of the two Houses, and none other; and he has performed those duties in the manner, and under the instructions given by the order of the two Houses. In no single instance has he ever pretended to have any right to decide any question as to the authenticity or validity of a vote, or to interfere with the tellers in the counting, or to determine what certificates or evidence of electoral votes should be submitted to the two Houses. He has acknowledged, without reservation, the most absolute authority of the two Houses over the whole subject, and recognized the fact, that any function beyond the opening of the packages of certificates, which he might exercise, was derived from the two Houses, and performed as their servant. In the whole hisrory of the Government, there is not a single exception to this established and continuous usage.

Third. The two Houses have not only always exercised the power to count the electoral vote in such manner and by such agents as they might choose to do it exclusively without interference from anybody else, but they have exercised the right to fix and establish the methods of procedure by standing rules. They have also asserted the right to prescribe a permanent method of counting the electoral votes. Whatever powers exist in the Federal Government for the purpose of ascertaining and determining the result of a presidential election by a canvass of the electoral votes, the two Houses of Congress have always claimed to possess, and to possess exclusively, subject to such regulations by law as they might themselves concur in enacting. And they have always asserted the right of the law-making power of Government to legislate on this subject, under the general constitutional grant of authority "to make all laws which shall be necessary or proper for carrying into exe

cution" the "powers vested in the Government of the United States by any department or office there.'

It has been several times proposed to regulate by act of Congress the mode of counting the electoral votes, of verifying the authenticity and validity of the votes, and determining the result of the presidential election, so far as those powers are to be exercised by the two Houses. A bill for this purpose was introduced and discussed in Congress early in the year 1800, when many of the persons who had participated in the forming of the Constitution in the Convention of 1787 or in its ratification by the State Conventions, were in Congress. Although differences of opinion as to what would be wise and safe regulations for the counting, existed to such extent as to defeat any agreement upon the details of the measure, the debate failed to develop any question or doubt as to the exclusive authority of the two Houses to count the votes, and to prescribe by concurrent action the mode of their counting. From the beginning to the end of the debate that authority was taken for granted. Among the prominent figures in that Congress were John Langdon, who, at the organization of the Government, in 1789, had acted as the special President of the Senate, on the anomalous first counting, before any regular procedure had been devised; John Marshall, afterward Chief-Justice, Albert Gallatin, who became famous as a publicist, as a statesman, and as a financier; and other men who had personal knowledge and fresh traditions of the meaning of the framers of the Constitution, and of the sense by which its provisions were interpreted, and had been adopted by the States and the people. The assumption unanimously by Congress, eleven years after the Constitution was set in motion, that the two Houses possess full and exclusive powers in respect to counting the electoral votes carries with it, therefore, the weight of the most distinguished contemporaneous exposition. That debate nowhere exhibits any question of the authority of the two Houses to count, and nowhere recognizes any power whatever on the part of the President of the Senate to count.

In 1875 and again in 1876 a bill regulating the mode of counting was introduced into the Senate and received a full and elaborate discussion in that body, and the affirmative vote of a majority of the Senators. On many occasions when the electoral votes were to be counted, or during the process, or in some debate to which it gave rise, the powers of the two Houses have been more or less discussed. While individual eceentricities of opinion or idiosyncrasies have exhibited themselves in the advocacy of the pretension on the part of the President of the Senate to go theoretically beyond the limits of his constitutional duty in opening the packages of electoral certificates, such instances have never exceeded one in a hundred of the members of the two Houses; never have made any practical progress or exerted any practical influence on the opinion or conduct of the two Houses; have never interrupted or modified the uniform current of the precedents, or in a single instance inspired any incumbent of the chair of the Senate to the slightest spirit of enterprise toward the enlargement of his constitutional prerogative. On the other hand, the exclusive authority of the two Houses of Congress over the counting has been universally and uniformly assumed and taken for granted. And so often as the members have been tempted into any incidental mention of their opinions, the expressions asserting such exclusive power on the part of the two Houses have been overwhelming in numbers and in weight of authority.

Some specimens of such expressions will be hereafter cited.

In the mean time it is proper to observe that without finding it necessary or convenient on this occasion to discuss the exact limits of the powers of the two Houses in judging of the authenticity and validity of electoral votes, or of the extent to which their investigations may be carried for that purpose, it is proper to observe that the powers of the two Houses in this respect are not arbitrary powers to be exercised at their own mere will, but are trust-powers to be exercised under all the solemn obligations that belong to judicial discretion in the most august of human tribunals.

OPINIONS OF MEMBERS OF CONGRESS.

arising in the course of counting the votes; the
duty is imposed upon the two Houses of Con-
gress. They alone can perform it, and they
have not the power to transfer its perform-
ance to anybody else. Whether this power is
there for weal or for woe, there it is; and un-
til the Constitution is altered there it must re-

Mr. Edmunds. It does not say that.
Mr. Sherman. It does practically.-Feb. 25, main.-March 13, 1876.